Walking down the aisle soon and considering a prenup? Congrats—on both the engagement and the prenup! A prenup is an effective marital planning tool that can help both partners get on the same page prior to the wedding (and also protect financial interests). But, where do you start? What are the legal requirements? And can you do this whole process without a lawyer? Let’s discuss everything you need to know about the lawyer requirement for a Pennsylvania prenuptial agreement.
Is a lawyer necessary for a valid and enforceable prenup in Pennsylvania?
No. Courts in Pennsylvania have consistently upheld the policy that adding a per se requirement for lawyers in a prenuptial agreement would be overbearing and unnecessary—people should be able to contract around the rights of their own property. (See Simeone v. Simeone, 525 Pa. 392 (1990).
However, people should have the opportunity to hire a lawyer if they want one. For example, in In Orsini v. Orsini (2023), the Pennsylvania Superior Court invalidated a prenup based on duress, focusing heavily on the lack of opportunity to consult with an attorney. The court found that the wife was handed the prenup the day before the wedding and given no meaningful opportunity to hire a lawyer or review the prenup. This, along with several other factors such as a one-sided agreement, emotional pressure, the short time between the signing of the prenup and the wedding, and the surprise nature of the agreement, also contributed to the finding of duress. However, the absence of opportunity to consult with counsel was central to the court’s finding that the agreement was unenforceable.
Bottom line? Prenups in Pennsylvania do not require legal representation, but each party should at least have the opportunity to hire a lawyer if they want one.
Can only one party hire a lawyer for a prenup?
Yes, it is possible for a prenup where only one spouse hired a lawyer to hold up in a Pennsylvania court. For example, in the landmark case of Simeone v. Simeone (1988), the court upheld a prenuptial agreement even though the wife did not have a lawyer and the husband did. The court emphasized that the absence of legal representation alone does not invalidate a prenup, especially when the person had plenty of time to review the agreement, was aware it was being drafted, and participated in its preparation. Because the agreement made reasonable provisions for the wife and there was no evidence of fraud, duress, or lack of disclosure, the court ruled it was valid and enforceable.
Can we share a lawyer for a prenup?
No, a prenuptial agreement lawyer may only represent one party to the agreement. Why? A single lawyer cannot adequately represent two parties to the same contract with opposing interests. For example, if one party would benefit from a waiver of alimony and the other would not, it would be difficult for the lawyer to advocate for both people at once without choosing sides. The lawyer would be placed in a position of favoring one party’s interests over the other, effectively undermining true legal representation for the disadvantaged party and potentially creating a false sense of protection, leading that party to believe they were being adequately advised when they were not.
Can one party pay the fees for the other party for the prenup?
Yes, as long as there is no evidence of fraud or duress, such as forcing the party receiving financial assistance to choose a specific attorney. For example, if Joe Smith is wealthier than his spouse Jane Doe and he offers to pay for her prenup attorney, but only if she hires Joe’s best-friend-attorney to represent her, it could be seen as one factor pointing towards duress and ultimately deemed unenforceable. On the other hand, if Joe Smith offers to pay the prenup attorney fees for Jane Doe and she is able to choose any attorney she wants, this isn’t an issue (as long as there are no other factors pointing towards duress, fraud, unconscionability, etc.).
Can we write our own prenup and have it notarized?
Yes—there is no law in Pennsylvania stopping parties from writing their own prenuptial agreement and having it notarized. However, the prenup must still follow all of the other legal requirements to create a valid agreement in the state. Hiring a lawyer is not one of the requirements to create a valid and enforceable agreement. You may also get any document notarized, whether written by you or an attorney. Notarization is the act of an official notary public acknowledging the signing of a document (like a prenup). It adds a layer of protection to your agreement, confirming that it was actually signed by you, but it is not a legal requirement in Pennsylvania.
The legal requirements for a valid prenup in Pennsylvania
So, what are the legal requirements for a valid prenuptial agreement in the state of Pennsylvania? The requirements are simple and track the same requirements for any other contract in the state—the agreement must be in writing and signed by both parties, and must be free of fraud, duress, or coercion. One additional requirement for prenups is that they must also include financial disclosure of all assets, income, and debt of both parties. Pennsylvania has few obstacles to getting a prenuptial agreement in order to foster the policy of the freedom to contract without an overburdening amount of requirements by the state.
What are the benefits of hiring a prenup lawyer?
Even though a lawyer is not required for a valid prenuptial agreement in Pennsylvania, hiring one still has many benefits. Hiring a prenup lawyer for your prenup can allow you to work with an attorney who can tailor your agreement to meet your unique needs. The lawyer can also recommend different clauses for you and explain what they mean. If you have any legal questions about the prenup or divorce, they’ll be able to assist with that as well. And, lastly, hiring a prenup lawyer can help ensure your agreement is state-compliant and legally sound—giving you the utmost peace of mind before entering into marriage!
The bottom line on the lawyer requirement for a prenup in Pennsylvania
The takeaway from this should be that you do not need a lawyer for a valid prenup in the state of Pennsylvania, however, they can still be beneficial. Hiring a lawyer to create and review your prenup can provide you with the peace of mind that your agreement is customized to your needs, state-compliant, and that you understand what you’re signing. If only one of you hires a lawyer, that’s okay too, just make sure there is no fraud, duress, or coercion involved. And same goes for if one person pays the prenup fees for the other person—it must be voluntary. So, go ahead and get started on your prenup journey. Happy planning!
Gregory Gilston is a family law attorney located In the Greater Philadelphia area. Attorney Gilston is licensed to practice law in Pennsylvania and services clients in Bucks, Chester, Delaware, Montgomery, and Philadelphia counties.
Attorney Gilston is currently on the executive board of the Doris Jonas Freed Inn of Court, and is an active member of the Philadelphia Bar Association’s Family Law Section and Alternative Dispute Resolution subcommittee, the Montgomery County Bar Association’s Family Law Section, Young Lawyer’s Section, and Pro Bono Committee. He is also an active contributor to Family Lawyer Magazine and the Montgomery County Bar Association’s quarterly publication.
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